State v. Moore
State v. Moore
Opinion of the Court
The court, on its own motion, has reconsidered its order for the issuance of a death warrant for Carey Dean Moore. Under Nebraska law, the mode of inflicting the punishment of death, in all cases, is “by causing to pass through the body of the convicted person a current of electricity of sufficient intensity to cause death.”
In the context of capital sentencing, we have explained that it has “‘long been settled’” that our jurisdiction ““‘is not exhausted by the rendition of its judgment, but continues until
Such power is not derived from legislative grant or specific constitutional provision, but from the very fact that this court has been created and charged by the state Constitution with certain duties and responsibilities.
In deciding whether to exercise our inherent power, we are mindful of the “especial concern” that “is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.”
There can be little question that Moore has received due process of law and has sought refuge in the courts before.
Had we properly considered those responsibilities at the time, we would not have ordered the issuance of a death warrant. As already noted, another case on our docket,
The purpose of a stay is to prevent a state from doing an act which is challenged and may be declared unlawful in a pending proceeding.
Finally, we observe that should Nebraska’s mode of execution be found lawful, the State’s interest in executing Moore’s sentence would only have been delayed. When a stay of execution is granted, it is also within the inherent power of this court to
For the foregoing reasons, we order, adjudge, and decree that the execution of Moore be, and hereby is, stayed and that the warrant of our clerk dated March 21, 2007, directing the warden of the Nebraska State Penitentiary to execute Moore be, and the same hereby is, withdrawn.
Execution stayed, and warrant withdrawn.
Neb. Rev. Stat. § 29-2532 (Reissue 1995).
State v. Mata, docket No. S-05-1268.
See, U.S. Const. amend. VIII; Neb. Const. art. I, § 9.
State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005); State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003).
State v. Joubert, 246 Neb. 287, 298, 518 N.W.2d 887, 895 (1994).
See, State v. Palmer, 246 Neb. 305, 518 N.W.2d 899 (1994); Joubert, supra note 6; Otey v. State, 240 Neb. 813, 485 N.W.2d 153 (1992).
Ex parte State ex rel. Attorney General, 150 Ala. 489, 43 So. 490 (1907).
In re Estate of Reed, 267 Neb. 121, 672 N.W.2d 416 (2003); Joubert, supra note 6.
See id.
Wassung v. Wassung, 136 Neb. 440, 286 N.W. 340 (1939). See, also, State, ex rel. Phoenix Loan Co. v. Marsh, 139 Neb. 290, 297 N.W. 551 (1941).
Ford v. Wainwright, 477 U.S. 399, 411, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986).
See, generally, State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006).
See id.
See id.
See State v. Ross, 272 Conn. 577, 616, 863 A.2d 654, 676 (2005) (Norcott, J., concurring).
See State v. Reddish, 181 N.J. 553, 603, 859 A.2d 1173, 1203 (2004).
State v. Martini, 144 N.J. 603, 677 A.2d 1106 (1996).
See id., citing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
See id.
Joubert, supra note 6, 246 Neb. at 304, 518 N.W.2d at 898.
Dissenting Opinion
dissenting.
Initially, we note that state and federal courts have considered numerous cases concerning Moore’s conviction, sentencing, and resentencing.
On appeal from the denial of his request, this court determined that Moore’s constitutional challenge to electrocution as the state-mandated method of execution was procedurally barred because in his direct appeal following resentencing, he did not
However, we specifically distinguished civil rights actions under 42 U.S.C. § 1983 (2000) from actions for postconviction relief and indicated that a challenge to the protocol may be available under § 1983: We discussed cases in which the U.S. Supreme Court held that a § 1983 action was an appropriate vehicle for a prisoner’s Eighth Amendment challenge to a state’s method of execution, seeking temporary and permanent injunctive relief against application of its procedures.
Despite our clarification of the proper method for challenging the means of execution, Moore has not filed a § 1983 action seeking to enjoin his execution until the State alters its protocol or adopts another means of execution. Moreover, Moore has recently filed a pleading in this court stating that he no longer wishes to challenge his sentence and further stating that “no filings are to be accepted by this court which are not prepared and filed by myself.” Moore’s statements and lack of action show that he has elected to waive his right to challenge the State’s protocol.
Except in the exercise of its appellate jurisdiction, the Supreme Court is one of limited and enumerated powers.
We are aware of the Connecticut Supreme Court’s decision in In re Ross,
The court rejected, for lack of standing, the petitioners’ attempt to gain next friend status to file the action on behalf of Ross and dismissed their motions to stay the execution. “It simply is unprecedented for this court to conclude that, although it has no jurisdiction over the case before it, it may act in that case to enter a stay in a separate proceeding.”
Since this court issued the death warrant, there have been no requests for relief to this court by Moore, nor has he rescinded his earlier request that no action be taken by this court in his case. In the absence of any such action, this court has no immediate basis to act and it is unprecedented to do so.
See, State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006); State v. Moore, 256 Neb. 553, 591 N.W.2d 86 (1999); State v. Moore, 250 Neb. 805, 553 N.W.2d 120 (1996), cert. denied 520 U.S. 1176, 117 S. Ct. 1448, 137 L. Ed. 2d 554 (1997); State v. Moore, 243 Neb. 679, 502 N.W.2d 227 (1993); State v. Moore, 217 Neb. 609, 350 N.W.2d 14 (1984); State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982), cert. denied 456 U.S. 984, 102 S. Ct. 2260, 72 L. Ed. 2d 864; Moore v. Kinney, 119 F. Supp. 2d 1022 (D. Neb. 2000), affirmed 320 F.3d 767 (8th Cir. 2003); and Moore v. Clarke, 904 F.2d 1226 (8th Cir. 1990), rehearing denied 951 F.2d 895 (8th Cir. 1991), cert. denied 504 U.S. 930, 112 S. Ct. 1995, 118 L. Ed. 2d 591 (1992).
See State v. Moore, supra note 1, 272 Neb. 71, 718 N.W.2d 537 (2006).
Id. at 80, 718 N.W.2d at 544.
See, Hill v. McDonough, 547 U.S. 573, 126 S. Ct. 2096, 165 L. Ed. 2d 44 (2006); Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 158 L. Ed. 2d 924 (2004).
State v. Joubert, 246 Neb. 287, 518 N.W.2d 887 (1994).
State ex rel. Wieland v. Moore, 252 Neb. 253, 561 N.W.2d 230 (1997).
See id.
Johnston v. Nebraska Dept. of Corr. Servs., 270 Neb. 987, 709 N.W.2d 321 (2006).
Compare, e.g., Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006) (discussing history of stays and evidentiary hearings conducted after condemned prisoner filed 42 U.S.C. § 1983 action challenging lethal injection procedures); Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999) (holding that execution by electric chair did not constitute cruel and unusual punishment after court had issued stay for evidentiary hearing pursuant to condemned prisoner’s petition for writ of habeas corpus, filed while he was under warrant of death).
In re Ross, 272 Conn. 676, 866 A.2d 554 (2005).
State v. Ross, 272 Conn. 577, 580 n.2, 863 A.2d 654, 656 n.2 (2005).
In re Ross, supra note 12, 272 Conn, at 679-80, 866 A,2d at 557.
See id.
Dissenting Opinion
dissenting.
There is no request for a stay or for other relief in the case before us. Mindful of the gravity of the matter, I write separately to note my concern at the issuance of a stay on the court’s own motion. Further, I am not persuaded that the pendency of other unrelated cases which will be heard and decided in a future term stands as a barrier to proceeding with the sentence in this case at this time.
Reference
- Full Case Name
- State of Nebraska, Appellee, v. Carey Dean Moore, Appellant
- Cited By
- 3 cases
- Status
- Published